Lee shooting shows tensions around public information laws

Strafford County Attorney Tom Velardi is declining to release police reports about an officer-involved shooting in Lee, citing the need to ensure the man who was shot receives a fair trial. Legal experts say Velardi's decision highlights a natural tension between the public's right to access information and the rights of a defendant in a criminal case.

By JIM HADDADIN

fosters.com

By JIM HADDADIN

Posted Mar. 24, 2013 at 3:15 AM
Updated Mar 24, 2013 at 1:11 PM

By JIM HADDADIN

Posted Mar. 24, 2013 at 3:15 AM
Updated Mar 24, 2013 at 1:11 PM

DOVER — Strafford County Attorney Tom Velardi is declining to release police reports about an officer-involved shooting in Lee, citing the need to ensure the man who was shot receives a fair trial.

Steven Amazeen is accused of brandishing a firearm and making threats toward police during a suicidal episode on the morning of Dec. 3, 2012. Police say Amazeen pointed a gun directly at one Durham officer before he was shot in the hip and shoulder.

While some information about the incident is available in court records, police and prosecutors have been reluctant to discuss the shooting in the 15 weeks since it occurred. The attorney general's office is still reviewing the use of lethal force by police — a process that will culminate in a detailed report.

In an effort to learn more about the circumstances, Foster's Daily Democrat filed several requests under the power of the state's Right-to-Know law this month. The newspaper requested copies of any sworn statements given by officers who were involved, as well as police reports describing the incident.

Foster's also requested records from the Durham Police Department that describe the placement of any officers on administrative leave since December 2012. In the wake of the shooting, sources told the paper that two Durham officers were placed on leave during the investigation.

Answering on behalf of all seven police departments involved in the incident, Velardi declined last week to release any police records before Amazeen's trial. In a letter dated March 15, Velardi wrote that it would be “unethical” for a prosecutor to release police records ahead of a criminal proceeding.

“The [court's] rules of professional conduct are specifically designed to prevent prosecutors from trying cases in the press by revealing the facts of the case to the public before an adjudication,” Velardi wrote.

Legal experts say Velardi's decision highlights a natural tension between the public's right to access information and the right of a defendant to receive a fair trial.

The decision also raises questions about the impact of new legislation that went into effect in New Hampshire in January. Former House member Brandon Giuda was the prime sponsor of a bill designed to ensure the public has a right to access police arrest records.

“As far as observations of what happened at the scene where [Amazeen] was arrested, I think that should be public,” Giuda said Wednesday, after being briefed by a reporter on the newspaper's request for police records in the Amazeen case.

“It's really a public event,” said Giuda, a Chichester attorney. “It's not an investigation. It's an event, so what happened at the arrest scene — their observations of what happened — I think should be public.”

The shooting took place following a domestic dispute at Amazeen's home at 289 Lee Hook Road. Amazeen allegedly told his wife to stay inside the house, fired a gun into the floor, went outside, then shot another round into the air.

Police from Lee, Durham, Barrington, Newmarket, Strafford, Newfields and Epping converged on the property at about 12:21 a.m., according to an affidavit filed by Lee Police Sgt. Brian Huppe. The document was made public through court proceedings.

Huppe's affidavit states that police found Amazeen “holding a handgun” while standing in the road.

“Officers on scene ordered him to drop the weapon and he did not,” Huppe wrote. “Steven Amazon (sic) told Senior Officer Michael Lyczak that he knows he is wearing a bullet proof vest so he will have to shoot him in the head. Steven Amazeen then turned toward two Durham Officers who fired on Steven Amazeen striking him(.)”

Amazeen's public defender, Joachim Barth, also described the incident in court documents. Barth wrote that Amazeen's handgun was tucked into a holster when police located him on the road.

“When the police arrived, Mr. Amazeen was walking down the road away from his house. Upon request, he produced a handgun from his holster, and asked the police to shoot him,” Barth wrote in a Jan. 31 court motion. “After a lengthy 'stand off' during which he repeatedly asked the police to shoot him, he was subsequently shot by police in the hip and shoulder after he made what police construed as menacing comments and gestures.”

Indictments handed up by a grand jury last week also provide some new details. Amazeen allegedly pointed his gun directly at Durham Police Officer David Carpenter before he was shot. Amazeen was also heard saying “I know to shoot for the head” or “words to that effect,” the indictments state. He also allegedly said words to the effect of: “I have five bullets left; let's see what happens.”

In the legal system, Velardi and other prosecutors bear a special responsibility to ensure defendants receive “procedural justice,” meaning their rights aren't infringed during a trial.

In New Hampshire, those responsibilities are spelled out in the “Rules of Professional Conduct,” a series of guidelines established by the judiciary. The rules stipulate that prosecutors are prohibited from making statements outside of court that have a “substantial likelihood” of prejudicing an upcoming trial. They also prohibit the release of documents that would have the same effect.

This means prosecutors are barred from talking about the “character, credibility, reputation or criminal record” of a suspect. They are still allowed to talk about the “fact, time and place” of the suspect's arrest, and the “claim” against the suspect.

Prosecutors must also refrain from making any comments outside the courtroom that have a “substantial likelihood of heightening public condemnation of the accused.”

These ethical responsibilities don't extend to police departments, which maintain their own arrest records. However, prosecutors must exercise “reasonable care” to prevent police and investigators from making any statements that would prejudice the case.

In the eyes of Hillsborough County Attorney Patricia M. LaFrance, that means prosecutors cannot release any information about someone's criminal record before a trial — including police records that describe the new allegations against them. LaFrance said she would prevent police from releasing any reports that are not already in the public domain.

“I need to exercise reasonable care,” she said. “If they called me about it, I would say, 'No, you can't release it. That's going to prejudice the case.'”

Merrimack County Attorney Scott W. Murray offered a less restrictive interpretation of the rules of conduct. Murray said he hasn't faced a situation in which a member of the press asked for police records before a trial, but he believes the rules do not call for a broad denial of information.

“It isn't, like, an absolute ban on the release of any police reports,” he said.

New Hampshire lawmakers have taken pains in the last year to ensure that the public has a right to understand circumstances that lead to an arrest. A statute that went into effect on Jan. 1 stipulates that arrest records are, by definition, subject to public disclosure.

An arrest record must include, at a minimum: the identity of the individual arrested; the identity of the arresting officer or officers; and a statement explaining why and how an arrest was made.

“The fact is that many times, police officers will change the story, or maybe not remember the story ... between the arrest and trial,” said Giuda, who spearheaded the change, “so the best record of anything that ever happens is, as you know, an immediate writing down of what happened and the circumstances surrounding it.”

However, legal experts offered differing views this week of how the statute should be interpreted.

Murray, the Merrimack County attorney, took a less expansive view of the disclosure requirements. He said “arrest records” should be construed only as basic administrative information — such as the person's name and the time of arrest.

LaFrance, in Hillsborough County, said she doesn't believe the new law impacts her duties as a prosecutor. The law stipulates that arrest records are “governmental records,” but does not explicitly identify them as “public records,” she said, meaning exemptions for police activity still apply.

“You can't make a law to force me to violate my ethical obligations,” she said.

Velardi took the same view in a recent interview.

“I don't know if anyone's ever reconciled that [arrest record] law with my responsibility not to disclose those facts under the Rules of Professional Conduct,” he said.

Concord attorney Bill Chapman, who is regarded as an authority on the state's public disclosure laws, said the question appears to fall into a gray area.

“I would think that that [arrest record] statute, because it's very precise, is going to trump any prosecutor's reluctance to release an arrest record,” he said.

New Hampshire courts have taken a strong stance in favor of the public's right to access government records. Nevertheless, the state's Right-to-Know law contains several exemptions.

When it comes to records that were compiled during a police investigation, the courts have adopted the view that six types of police records may be exempt from public disclosure.

One such exemption is granted for police records that would interfere with an ongoing law enforcement proceeding if they were divulged to the public. Velardi invoked this exemption in his objection to the Right-to-Know requests filed by Foster's.

Granting the public access to police reports could “reasonably be expected to interfere with enforcement proceedings” in Amazeen's case, according to Velardi. Publishing details from the police reports as “unproved fact” would detract from the trial process, he wrote.

Velardi also argues that Amazeen would be deprived of the right to a fair trial if the documents are released — another exemption recognized by the courts.

Chapman says that Velardi is correct in asserting that some police records can be withheld while a law enforcement operation is ongoing. However, courts will favor disclosure whenever possible, and public officials must prove their case for keeping information secret.

“There is an exemption for ongoing investigation,” Chapman said, “but the burden is on the county attorney to demonstrate the records he does not want released, if released, would interfere with the investigation.”

So when is a law enforcement investigation deemed to be complete?

Senior Assistant Attorney General Susan Morrell is the woman in charge of the investigation into the use of lethal force against Amazeen.

“I think it's fair to say the investigation is complete,” Morrell said Wednesday. A report on the incident is still pending, she said.

Nevertheless, the investigation into police conduct is separate from the criminal proceedings in Strafford County, which fall under Velardi's purview.

Ultimately, requests for police investigative records often come down to the discretion of a judge, according to Manchester attorney Dean B. Eggert, of the law firm Wadleigh, Starr & Peters, since they involve competing constitutional rights.

“While there's still a strong constitutional interest on the ... sunshining of the actions of our criminal justice system, you run into a competing constitutional value, which is the right to a fair trial,” he said.

Still, Giuda worries that public officials in New Hampshire err on the side of secrecy far too often.“It just scares me how many incidents we see in New Hampshire of things being held as secret or not disclosed when they should be,” he said.